Coburn v. New Telephone Co.

• Decision Date: 01 February 1901
• Docket Number: 18,853
• Citation: 59 N.E. 324,156 Ind. 90
• Parties: Coburn v. The New Telephone Company
• Court: Indiana Supreme Court

59 N.E. 324

156 Ind. 90

Coburn v. The New Telephone Company

No. 18,853

Supreme Court of Indiana

February 1, 1901

From the Marion Circuit Court.

Affirmed.

J Coburn and D. W. Howe, for appellant.

L. C Walker, for appellee.

OPINION

Hadley, J.

The appellant is the owner of a lot of land in the city of Indianapolis abutting on Delaware street forty-five feet and on New York street 125 feet. Both of these streets are public streets of said city, each ninety feet wide, and twenty-five feet on each side of New York street has been set apart and improved as sidewalks. Appellant also owns, subject to the public easement thereon for street purposes, so much of each of said public streets as lies opposite and adjacent to the front and side of his said lot to the middle of each of said streets. At present his lot has no improvements thereon, but appellant contemplates and intends to erect a large business block on it, with cellars, basement, and vaults extending under the sidewalk in front and at the side of his said lot. The appellee, a telephone company, organized and doing business under the laws of this State, without leave or license from the appellant, and without having taken any steps to condemn or appropriate any portion of the ground covered by said streets in front and alongside of appellant's lot, or to assess appellant's damages therefor, and without notice to appellant, did, on the 12th day of July, 1898, by its officers, agents, and employes wrongfully dig a trench, about three feet wide and five feet deep, in the sidewalk, about three feet from the south line of said New York street, along the entire portion thereof extending and abutting upon the appellant's said lot, and said company is engaged in cementing the same and placing pipes therein, and as soon as the said trench shall be completed, said company threatens to, and will, if not restrained, put in wires and use the same as a conduit of telephone wires permanently. The deposit of pipes, cement, and wires will be a complete obstruction of the use of said grounds under said street by the appellant; will permanently destroy his rights therein; will deprive him of the use of the same forever, and will greatly impair the value of his property, inflicting upon him irreparable loss and injury, which cannot be accurately estimated, or compensated in damages. Appellant discovered the foregoing proceedings and acts of the appellee July 12, 1898, and instituted this suit on the next day thereafter. The foregoing facts are shown by the complaint, and the appellant asked for a temporary order enjoining the further prosecution of the said work by the appellee, and that on the final hearing he might have a permanent injunction. The appellee demurred to the complaint for the want of sufficient facts, and its demurrer was sustained. This ruling is assigned for error.

The principal ground upon which appellant seeks a reversal is that the city had no power to dig or to authorize appellee to dig the trench complained of, until the damages resulting to appellant had first been assessed and tendered. He says: "We concede that an abutting lot owner has no legal right to complain of the erection of telephone poles, or the digging of telephone trenches in the street, so long as this is no special injury to him; in other words that if there is no injury to him beyond the interference with his abstract right of property in the street itself, such as he holds in common with all other abutting lot owners, he has no legal grounds of complaint." His right of recovery then must rest upon some special injury to his absolute property right which he holds in the street as an abutter, and which he has the right to defend against the city or its licensee.

Under many decisions of this court the fee owner of an abutting lot whose grantor dedicated the public easement in connection with the platting of the lot, owns also the fee in the land to the center of the street, subject to the easement of the public to make such uses of the street as were reasonably contemplated in the dedication, grant, or condemnation. Terre Haute, etc., R. Co. v. Scott, 74 Ind. 29, and cases cited; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297, 301, 47 Am. St. 264, 38 N.E. 604.

The appellant must therefore show that the alleged occupation of the sidewalk with trench and pipes as a conduit for telephone wires is a new servitude not within the contemplated uses of the street, and therefore an additional burden upon his fee for which he is entitled to recompense. The fact that the entry complained of is upon and under the sidewalk rather than under the roadway makes no difference, since a street is a street from property line to property line, not only the entire surface, but also so much of the depth as is or can be fairly used for the ordinary purpose of a street, each part equally with every other. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Elliott on Roads and Streets (2nd ed.) §§ 17, 20.

Neither can it be said, in the absence of a grant, or a general usage equivalent to a municipal license, that the fee owner has any greater or different property right in that part of the street used as a sidewalk for foot travelers than in that part used as a roadway for vehicles. He may, we think, excavate and improve under the surface from his lot line to the center line of the street, or any part of it, and use his fee property as he pleases--Elliott on Roads and Streets (2nd ed.) § 690, and cases cited--so long as his use does not impede or interfere with the superior right of the public to use the ground for purposes contemplated by the easement grant. Such fee owner, however, must know that the estate he holds within the limits of the streets is servient, and his property right therein qualified, and that any expenditure of labor or money in improvements will neither oust, nor impair the right of the municipality to take possession, for a proper purpose, at any time the public interests require. And in yielding possession, under such circumstances, to the superior right of the public, he parts with nothing he owns, and the loosing in itself is no special injury, nor a taking of property without compensation. Magee v. Overshiner, 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358, 49 N.E. 951; Julia Bldg. Assn. v. Bell Tel. Co., 13 Mo.App. 477; Davis v. City of Clinton, 50 Iowa 585; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Dillon's Munic. Corp. (4th ed.) § 699.

Dillon in the section quoted says: "If the fee of the street is in the municipality in trust for the public uses, as it frequently is, it extends to the whole street, including the sidewalk; and the adjoining lot owner has, it seems clear, no absolute right, as against the public or the municipality charged with the control of the streets, to appropriate them to this use. And in our judgment the lot owner's right is not substantially greater even if he has the fee in the street. In either case, to recognize such a right except subject to municipal regulation would be inconsistent with the public rights, which are paramount in the whole street to the extent of all legitimate street uses and servitudes required, or which may be required, for the public benefit and convenience. The lot owner's rights are subject to the paramount rights of the public; and the rights of the public...